International Journal of Law
International Journal of Law
ISSN: 2455-2194, RJIF 5.12
www.lawjournals.org
Volume 3; Issue 2; March 2017; Page No. 50-52
A Critical analysis of legal presumption of legitimacy of child under section 112 of Indian Evidence
Act, 1872
1
1
Mahendra Agatrao Lomte, 2 Dr. SR Katari
B.A.M.S. & LL.M., Pursuing Ph.D. in Law at Dr. Babasaheb Ambedkar Marathwada University, Aurangabad. Maharashtra, India
2
Research Guide, Associate Professor, Law College, Osmanabad, Maharashtra, India
Abstract
Section 112 of Indian Evidence Act, 1872 deals with the proof of legitimacy of children if they are born during wedlock or within
certain period of the dissolution of marriage. In many ways it is a unique section. On the one hand it establishes the fact of
marriage as conclusive proof of the legitimacy of the children and at the same mentions that ‘conclusive proof’ of legitimacy can
be displaced by proving ‘no access’ between the parties at any time when child could have been begotten. This section itself
provides an escape route to the party who wants to escape from the rigor of that conclusiveness. The said escape route is, if it can
be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be
dispelled. The fact that Section 112 had been drafted at a time when the discovery of modern scientific techniques like DNA had
not been contemplated. This article focuses on the analysis of legal presumption of legitimacy of child under Section 112 of Indian
Evidence Act, 1872 in the light of modern scientific techniques.
Keywords: conclusive proof, legitimacy, non-access
Introduction
Section 112 of Indian Evidence Act, 1872- The fact that any
person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and
eighty days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the legitimate
son of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could
have been begotten.
The section is based on the principle that when a particular
relationship such as marriage, is shown to exist, then its
continuance must prima facie be presumed [1].
According to this section the fact that any person was born1) During the continuance of a valid marriage between his
mother and any man, or
2) Within two hundred and eighty days after its dissolution,
the mother remaining unmarried,
Shall be conclusive proof that he is the legitimate son of that
man unless the parties had no access to each other at any time
when he could have been begotten, any fact out of these two
facts is sufficient to establish its legitimacy, and shift the
burden of proof to the party, seeking to establish the contrary.
According to the legislative intention the spirit behind S. 112,
once the validity of marriage is proved then there is strong
presumption about the legitimacy of children born from the
wedlock. This presumption can only be displaced by strong,
clear, satisfying and conclusive evidence. The presumption
cannot be displaced by mere balance of probabilities or any
circumstances creating doubt. It is well settled principle of law
that odiosa et inhonesta non sunt in lege praesumenda (nothing
odious or dishonorable will be presumed by the law). The law
presumes against vice and immorality. In a civilized society it
is imperative to presume the legitimacy of a child born during
continuation of a valid marriage and whose parents “have
access” to each other. S. 112 is based on presumption of public
morality and public policy [2].
Conclusive Proof
Section 4 of Indian Evidence Act, 1872- “conclusive proof” –
when one fact is declared by this Act to be conclusive proof of
another, the Court shall, on proof of the one fact, regard the
other as proved, and shall not allow evidence to be given for
the purpose of disproving it.
The expression “conclusive proof” shall have to be read along
with Section 112 of the Evidence Act. It may be mentioned
here that it is not a case of rebutting the presumption for the
reason that conclusive proof is irrebuttable. The other
presumption mentioned in Section 4 of the Act, namely, ‘may
presume’ and ‘shall presume’ are rebuttable presumptions.
Conclusive proof is irrebuttable. Therefore, no evidence can be
permitted to be let in to disprove the conclusive presumption. It
becomes a misconception to say that the person who is
disputing the paternity of child can disprove the same or rebut
the presumption by adducing any evidence of non-access in
between the couple at the relevant time. On the other hand, it
appears to be correct view that the operation of the conclusive
presumption can be avoided by proving non-access at the
relevant time. But, certainly it is not case of rebutting the
presumption [3].
Legitimacy of Child
Whether the Court can direct the respondent to submit himself
2
Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454.
Alex Samuel and Dr. Swati Parikh, DNA Tests in Criminal Investigation
and Paternity Disputes, 2nd ed. Allahabad, Dwivedi and Company, 2014.
p.610.
3
1
Bhima v. Dhulappa, (1904) 7 Bom LR 95.
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International Journal of Law
to the DNA test. The Apex Court in Gautam Kundu v. State of
West Bengal [4] held in paragraph 26 thus:
1. That Court’s in India cannot order blood test as a matter of
course;
2. Wherever applications are made for such prayers in order
to have roving inquiry, the prayer of blood test cannot be
entertained.
3. There must be strong prima facie case in that the husband
must establish non-access in order to dispel the
presumption arising under section 112 of the Evidence
Act.
4. The Court must carefully examine as to what would be the
consequences of ordering the blood test, whether it will
have the effect of branding a child as bastard and the
mother as an unchaste woman.
5. No one can be compelled to give sample of blood for
analysis.
In Kanti Devi v. Poshi Ram [5]. The Apex Court in Para 10 held
thus :
“10. We may remember that section 112 of the Evidence Act
was enacted at a time when the modern scientific
advancements with deoxyribonucleic acid (DNA) as well as
ribonucleic acid (RNA) tests were not even in the
contemplation of the Legislature. The result of a genuine DNA
test is said to be scientifically accurate. But even that is not
enough to escape from the conclusiveness of Section 112 of the
Act e.g., if a husband and wife were living together during the
time of conception but the DNA test revealed that the child was
not born to the husband, the conclusiveness in law would
remain irrebuttable. This may look hard from the point of view
of the husband who would be compelled to bear the fatherhood
of a child of which he may be innocent. But even in such a case
the law leans in favor of the innocent child being bastardised if
his mother and her spouse were living together during the time
of conception. Hence the question regarding the degree of
proof of non-access for rebutting the conclusiveness must be
answered in the light of what is meant by access or non-access
as delineated above”.
In Shradha v. Dharmal [6] a three Judges Bench of the Apex
Court held in Para 81 thus:
“1. A matrimonial Court has power to order a person to
undergo medical test.
2. Passing of such an order by the Court would not be in
violation of the right to personal liberty under Article 21 of the
Indian Constitution.
3. However, the Court should exercise such a power if the
applicant has a strong prima facie case and there is sufficient
material before the Court. If despite the order of the Court, the
respondent refuses to submit himself to medical examination,
the Court will be entitled to draw adverse inference against
him.”
Thus from the above judgments it is pertinent that the Court
has the power to order a person to undergo medical test and
such an order would not be in the violation of Article 21 of
Indian Constitution. However the Court should exercise such
power with due care, only when it is expedient in the interest of
justice and when the facts in a given case require the same. It is
apparent from these judgments that DNA test cannot rebut the
conclusive presumption of the legitimacy of the person born or
conceived during wedlock. The parties can avoid the rigor of
such conclusive presumption only by proving non-access
which is a negative proof. It is always open to the Court to
draw an adverse inference when the spouse refuses to undergo
the test despite the order given by the Court.
Non- access
Section 112 requires the party disputing the paternity to prove
non-access in order to dispel the presumption. “Access” and
“non-access” mean the existence or non-existence of
opportunities for sexual intercourse; it does not mean actual
cohabitation. It is rebuttable presumption of law under Section
112 that a child born during the lawful wedlock is legitimate
and that access occurred between parents. This presumption
can only be displaced by a strong preponderance of evidence,
and not by mere balance of probabilities [7].
Non-access could be established not merely by positive or
direct evidence; it can be proved undoubtedly like any other
physical fact by evidence either direct or circumstantial, which
is relevant to the issue under the provisions of the Indian
Evidence Act, though as the presumption of legitimacy is
highly favored by law it is necessary that proof of non-access
must be clear and satisfactory [8].
As per the need of the hour, recently, the Indian Evidence
(Amendment) Bill, 2003 has been proposed by the
recommendation of the 185th Law Commission Report. In the
Bill, proposal is there to revise Section 112 of the Indian
Evidence Act, 1872. It provides as follows:
“112. The fact that any child was born during the continuance
of a valid marriage between its mother and any man, or within
two hundred and eighty days.
(i) After the marriage was declared nullity, the mother
remaining unmarried, or
(ii) After the marriage was avoided by dissolution, the mother
remaining unmarried.
Shall be conclusive proof that such person is the legitimate
child of that man, unless
(a) It can be shown that the parties to the marriage had no
access to each other at any time when the child could have
been begotten; or
(b) It is conclusively established, by tests conducted at the
expense of that man, namely,
(i) Medical tests, that at the relevant time, that man was
impotent or sterile, and is not the father of the child; or
(ii) blood tests conducted with the consent of that man and his
wife and in the case of child, by permission of the Court, that
the man is not the father of the child; or
(iii) DNA genetic printing tests conducted with the consent of
that man and in the case of the child, by permission of the
Court that the man is not the father of the child; and
Provided that the Court is satisfied that the test under subclause (i) or sub-clause (ii) or sub-clause (iii) has been
conducted in a scientific manner according to accepted
procedures, and in the case of each of these sub-clauses (i) or
(ii) or (iii) of clause (b), at least two tests have been conducted,
4
AIR 1993 SC 2295 : 1993 Cri LJ 3233,
(2001) 5 SCC 331: 2001 AIR SCW 2100: AIR 2001 SC 2226.
6
2003 (3) ALD 1 (SC): (2003) 4 SCC 493: 2003 (6) AIC 138: 2003 (51)
ALR 289.
5
7
Gautam Kundu v. State of West Bengal, : 1993 Cri LJ 3233,
Babita Devi v. State of Jharkhand, 2012 (1) DMC 108 at 110: 2011 Cri LJ
3645 (Jhar).
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International Journal of Law
and they resulted in an identical verdict that man is not the
father of the child.
Provided further that where man refuses to undergo the tests
under sub-clause (i) or (ii) or (iii) he shall, without prejudice to
the provisions of clause (a), he deemed to have waived his
defense to any claim of parentage made against him.
Explanation I : For the purpose of sub-clause (iii) of clause (b),
the words ‘DNA genetic printing tests’ shall mean the tests
conducted by way of samples relatable to the husband and the
child and the words ‘DNA’ mean ‘Deoxyribonucleic Acid’.
Explanation II: For the purpose of this section, the words ‘valid
marriage’ shall mean a void marriage till it is declared nullity
or a voidable marriage till it is avoided by dissolution, where
by any enactment for the time being in force, it is provided that
the children of such marriage which are declared nullity or
avoided by dissolution, shall nevertheless be legitimate.”
It transpires from above proposal that the Law Commission has
recommended two more exceptions that where there is string
proof; conclusive proof will be the standard for the same. So,
as far as DNA evidence is concerned, the Bill prescribes that a
mismatch is a conclusive proof for the person not being the
father [9].
References
1. Bhima Dhulappa v. 1904. 7 Bom LR 95.
2. Sham Lal v. Sanjeev Kumar. 2009, 12 SCC 454.
3. Alex Samuel and Dr. Swati Parikh, DNA Tests in
Criminal Investigation and Paternity Disputes, 2nd ed.
Allahabad, Dwivedi and Company, 2014. p.610.
4. AIR 1993 SC 2295 : 1993 Cri LJ 3233,
5. (2001) 5 SCC 331: 2001 AIR SCW 2100: AIR 2001 SC
2226.
6. 2003 (3) ALD 1 (SC): (2003) 4 SCC 493: 2003 (6) AIC
138: 2003 (51) ALR 289.
7. Gautam Kundu v. State of West Bengal, 1993 Cri LJ
3233.
8. Babita Devi v. State of Jharkhand, 2012 (1) DMC 108 at
110: 2011 Cri LJ 3645 (Jhar).
9. 2006 Cri LJ, Journal Section at 102
Conclusion
Section 112 is based on presumption of public morality and
public policy. The rule of presumed legitimacy as embodied in
this section is rather founded in decency, morality and policy.
This conclusive presumption can be dispelled only by nonaccess of the parties, and that not-access required to be proved
not on balance of probabilities but on the strong preponderance
of evidence. No other evidence is admissible to rebut this
conclusive presumption. The presumption is in favor of
legitimacy and against bastardy. Provisions of this section
apply only to lawful marriage. It is obvious that Legislatures
had no contemplated the advancement of modern techniques
while enacting section 112 of The Indian Evidence Act, 1872.
Law is considered to be dynamic one and not static, it should
keep changing according to needs and development of the
society without compromising its basic principles.
Suggestions
1) The Indian Evidence (Amendment) Bill, 2003 has been
proposed by the recommendation of the 185 th Law
Commission Report. In the Bill, proposal is there to revise
Section 112 of the Indian Evidence Act, 1872.
Recommendations of the 185th Law Commission with
reference to Section 112 of the Indian Evidence Act, 1872,
should be accepted and incorporated
2) It may turn out the first Indian legislation to give statutory
acceptance to modern techniques like DNA investigations
conducted by consent of parties.
3) It will introduce modern advanced techniques to dispel the
conclusive presumption and these techniques are supposed
to be free from human errors like memory errors,
judgmental errors etc. and vices of human nature, which
will minimize the hardship on the concerned parties.
4) By incorporating these recommendations the rule of
presumed legitimacy as embodied in this section which is
founded in decency, morality and policy will remain intact.
9
2006 Cri LJ, Journal Section at 102
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